Bashir Abdalla v Peter Luganje Karisa [2021] KEHC 6171 (KLR)
- Citation
- [2021] KEHC 6171 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Posture
- Civil Appeal / Ruling on Preliminary Objection and Jurisdiction
- Case number
- Civil Appeal E001 of 2020
- Language
- English
More details
- Court
- High Court
- Posture
- Civil Appeal / Ruling on Preliminary Objection and Jurisdiction
- Case number
- Civil Appeal E001 of 2020
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The High Court found that the preliminary objection regarding jurisdiction had already been conclusively determined by the lower court in its ruling. Applying the doctrine of res judicata under section 7 of the Civil Procedure Act, the court held that it could not revisit or alter a judgment that had already been signed and delivered, except under the limited circumstances provided for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. As such, the court lacked jurisdiction to entertain the appellant's request to reconsider the matter, and the application was denied.
Court disposition
Application denied for want of jurisdiction; preliminary objection deemed conclusively determined.
Orders
- The request to revisit or alter the judgment is denied.
02
Material facts
Parties
Bashir Abdalla
Appellant Counsel: Kokul, Fozah & PartnersPeter Luganje Karisa
Respondent Counsel: Wambua Kilonzo & Co. Advocates03
Procedural history
Posture
Civil Appeal / Ruling on Preliminary Objection and Jurisdiction
04
Questions and positions
Legal issues
- 01
Whether the preliminary objection on jurisdiction was conclusively determined by the lower court.
- 02
Whether the High Court has jurisdiction to revisit or alter a judgment already signed and delivered, except under review provisions.
Party arguments
- Applicant
- The appellant sought relief contending that the preliminary objection as to jurisdiction had not been addressed by the lower court, and requested the High Court to consider the matter afresh.
- Respondent
- The respondent argued that the preliminary objection was conclusively determined in the lower court's ruling, and that the High Court lacks jurisdiction to revisit or alter a judgment already signed and delivered except as provided for under review jurisdiction.
05
Court’s reasoning
Legal principles
- 01
Order 21 of the Civil Procedure Rules; section 80 of the Civil Procedure Act; Order 45 rule 1 of the Civil Procedure Rules
A court which has signed its judgment and final order disposing of a case shall not alter or review it except as provided for under review jurisdiction.
- 02
Section 7 of the Civil Procedure Act
Matters that have been conclusively determined are res judicata and cannot be reopened.
06
Ratio, limits and disposition
Ratio decidendi
The High Court found that the preliminary objection regarding jurisdiction had already been conclusively determined by the lower court in its ruling. Applying the doctrine of res judicata under section 7 of the Civil Procedure Act, the court held that it could not revisit or alter a judgment that had already been signed and delivered, except under the limited circumstances provided for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. As such, the court lacked jurisdiction to entertain the appellant's request to reconsider the matter, and the application was denied.
Obiter and limits
- The court noted that due to Covid-19 restrictions, the ruling was delivered online, waiving the requirements of Order 21 [1] of the Civil Procedure Rules.
Court disposition
Application denied for want of jurisdiction; preliminary objection deemed conclusively determined.
- The request to revisit or alter the judgment is denied.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARSEN
CIVIL APPEAL NO. E001 OF 2020
BASHIR ABDALLA............................................APPELLANT
VERSUS
PETER LUGANJE KARISA..............................RESPONDENT
(Being an appeal from the Ruling of Hon. E.Kadima - Senior Resident Magistrate
Court at Garsen dated and signed and delivered on the 10th August, 2020 in PMCC No. 33 of 2019)
Coram: Hon. Justice R. Nyakundi
Kokul, Fozah & Partners for the Appellant
Wambua Kilonzo & Co. Advocates for the respondent
R U L I N G
Once again Learned Counsel Mr Wambua for the Respondent in the applications filed by the intended appellant contends that the preliminary objection as to jurisdiction was never addressed by the Court. The Respondent’s Counsel points out that notwithstanding the Court’s power to grant the relief sought by the Appellant there was no determination on the issues contained in the preliminary objection. Following the grievance by the Learned Counsel, I took the liberty to peruse the record and the impugned Ruling dated 15th December, 2020. In the proceedings together with the Ruling under review the objection so raised was conclusively determined.
Keeping the principles as laid down under section 7 of the Civil Procedure Act the concerns, raised by Counsel viewed from either angle is in all practical intents and purposes res judicata.Therefore looking at Order 21 of the Civil Procedure Rules no court which has signed its judgement and final order disposing over a case shall alter save otherwise under review jurisdiction as expressly provided for under section 80 of the Civil Procedure Act and under Order 45 rule 1 of the Civil Procedure Rules. At this stage the Court has no jurisdiction to look into the matter afresh. The request is therefore respectively denied.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 16TH DAY JUNE, 2021.
..........................
R. NYAKUNDI
JUDGE
NB:In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.
(wambuakilonzo@gmail.com,legal@kfpartners.co.ke)
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